COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71546 RADY ANANDA : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION STEVEN A. BAYT : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 10, 1997 CHARACTER OF PROCEEDING: Civil appeal from Cleveland Municipal Court, Small Claims Division, Case No. 96-CVI-02561. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: William G. Meckler, Esq. William G. Meckler Co., L.P.A. 3637 South Green Road #3D Beachwood, Ohio 44122 For Defendant-appellant: Steve A. Bayt, pro se 2814 Dellwood Drive Parma, Ohio 44134-4208 - 2 - SWEENEY, JAMES D., C.J.: Defendant-appellant Steven Bayt appeals pro se from the trial court's decision in favor of the plaintiff-appellee Rady Ananda. Appellee filed an action on an account which was heard before a magistrate in the Cleveland Municipal Court, Small Claims Division. The record demonstrates that both appellant and appellee appeared at the hearing held before the magistrate. Thereafter, the magistrate issued her decision granting judgment for the appellee in the sum of $480.24, plus court costs with interest to be calculated at 10% from the date of judgment. The trial court affirmed the magistrate's decision on July 1, 1996. On July 10, 1996, the appellant filed objections to the magistrate's report which disputed the findings and conclusions of the magistrate based upon evidence allegedly presented at the hearing, but which was not supported by a transcript or other adequate record of the hearing before the small claims court magistrate. The appellee filed a brief in opposition to the appellant's objections to the magistrate's report. The court, pursuant to Civ.R. 53, overruled the objections to the magistrate's report and affirmed the judgment. It is from this decision the appellant has filed this appeal. It must also be noted that the appellant failed to file with this court a transcript of the hearing before the magistrate or a statement pursuant to App.R.(C). - 3 - Based upon the evidence at hearing, the magistrate made the following findings: The parties entered into a verbal agreement whereby Plaintiff would substitute for Defendant on his regular Plain Dealer newspaper route from 1-10-96 through 2-9-96. Defendant agreed to pay Plaintiff $.63 for Sunday papers and $.15 for the dailies. Plaintiff delivered the papers as promised for 15 days, but then suffered a physical problem with her knee causing her to hire a substitute to deliver the papers. Defendant returned to Cleveland on 1- 26-96 and left Plaintiff a note that he would deliver one street, but that she could do the remainder of the route. Plaintiff claims that she, or her substitute, delivered 433 Sunday papers and 1,923 dailies. After deducting $28.00 in cash paid by customers, the amount owed Plaintiff is $533.24. Plaintiff's witness, Melissa Roche, testified that she has been a Plain Dealer carrier for four years. The Plain Dealer requires that the carriers be at the depot and out the door by 5:45 a.m. She observed Plaintiff on the route for at least ten (10) days and provided her assistance on a Sunday delivery. Defendant's position is that due to the number of customer complaints communicated to him in San Francisco through his mother, he came home two and one-half weeks early. He purchased his return ticket on 1-15-96 and returned on 1-25- 96 because that was his most economical alternative. Defendant claims that he sustained financial damage as a result of Plaintiff's breach of their agreement. On cross-examination Defendant admitted that the customer is still obliged to pay for the paper even when its (sic) delivered late. Plaintiff did breach the verbal agreement with Defendant when she stopped delivering papers herself and hired a sub to take over. Common sense dictates that if Plaintiff developed a physical problem with her knee it would slow down her delivery time. It would be reasonable to conclude the customers complained to - 4 - Defendant's mother which caused him to cut short his plans and come home early. The problem is that Defendant did not prove that he sustained financial damages as a result of Plaintiff's breach of contract. Because there was a breach of the verbal agreement, damages to be deducted are in the nominal amount of $50.00. Defendant remains liable to Plaintiff for $480.24 plus court costs. Interest will be calculated from date of judgment at 10%. The appellant sets forth the following assignment of error: THE HONORABLE JOAN M. WHITE, MAGISTRATE OF THE CLEVELAND MUNICIPAL COURT. (SIC) IT IS ASSERTED MADE NINE ERRORS IN THE TRIAL CASE. THE ERRORS ARE AS FOLLOWS: 1. NOT RULING TIME IS OF THE ESSENCE IN SUBSTANTIAL PERFORMANCE. 2. VIOLATING BUSINESS RECORDS HEARSAY EXEMPTION. 3. NOT RECOGNIZING IRREPARABLE DAMAGES. 4. NOT RECOGNIZING MISREPRESENTATION OF MATERIAL FACT. 5. FAVORING ILLEGAL DELEGATION OF DUTIES. 6. NOT DECLARING ABANDONMENT OF AN ENTIRE CONTRACT. 7. NOT DIFFERENTIATING AN ENTIRE VS. SEVERABLE CONTRACT. 8. WRONGFUL DETERMINATION OF WITNESS CREDIBILITY. 9. ACCEPTING BREACH OF CONTRACT DEFENSE WITH NO BURDEN OF PROOF. Although the appellant delineates nine subparts to his assignment of error, his arguments may be categorized into three 1 areas of the law. In the third, fourth, eighth and ninth subparts, the appellant contests the manifest weight of the evidence. In the second subpart, the appellant has assigned as 1 . This court notes that the subparts specifically outlined in the assignment of error have been considered, as opposed to the differently numbered arguments contained in the brief. - 5 - error the court's refusal to admit evidence. In the first, fifth, sixth and seventh subparts, the appellant sets forth arguments based on basic contract principles. Based upon a review of the record in the case sub judice, this court is forced to conclude that the appellant has failed to exemplify any error committed by the court below. This court has previously determined that where the appellant has failed to file an affidavit or other adequate record of the evidence presented to the magistrate to support objections to the report, it is not error for the trial court to summarily overrule the objections. Chaney v. East (1994), 97 Ohio App.3d 431. Likewise, where the appellant has failed to file on appeal a transcript of the hearing below or a statement pursuant to App. R. 9(C), this court must presume regularity of the proceedings below and affirm the judgment of the trial court. Id. In the case sub judice, the appellant has assigned as error determinations made by the magistrate, and affirmed by the court, based upon oral testimony given at the hearing. The weight to be given evidence, the admission of evidence, and the existence of and parameters of an oral contract, were each considered by the magistrate after testimony taken under oath. Since the appellant failed to support his objections to the magistrate's decision with a transcript or other adequate record of the hearing, the trial court affirmed the magistrate's decisions. - 6 - Given the absence of an adequate record of the evidence presented at the hearing before the magistrate, this court of appeals must presume regularity of the municipal court's judgment based on the magistrate's decision. Chaney, supra, citing to Sasarak v. Sasarak (1990), 66 Ohio App.3d 744. The appellant's assignment of error is overruled. Judgment affirmed. - 7 - It is ordered that appellee recover of appellant her costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cleveland Municipal Court, Small Claims Division, to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. PATRICIA A. BLACKMON, J., and KENNETH A. ROCCO, J., CONCUR. JAMES D. SWEENEY CHIEF JUSTICE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App. R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .